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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.9
Background References: ABA Model Rule 1.9, Other Jurisdictions
Commentary:
NJ Commentary:

1.9:101      Model Rule Comparison

New Jersey’s RPC 1.9(a) differs from the ABA Model Rule 1.9(a) in that RPC 1.9(a) provides that the client’s consent must be after a full disclosure of the circumstances and consultation with the former client.

The New Jersey Supreme Court also added a new paragraph (b) that provides that the provisions of RPC 1.7(c), i.e., the appearance of impropriety standard, are applicable as well to cases covered by RPC 1.9.

The ABA’s 1989 restructuring of Model Rules 1.9 conforms with the New Jersey Court’s approach to this issue. Compare the 1989 versions of Model Rules 1.9 with the 1983 versions. The ABA in effect adopted the New Jersey approach by transplanting a streamlined version of the 1983 formulation of Model Rule 1.10(b) into Model Rule 1.9. New Jersey’s RPCs, in contrast, retain the 1983 structure. See RPC 1.9 and 1.10.

1.9:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.9:200   Representation Adverse to Interest of Former Client--In General

Primary New Jersey References: NJ Rule 1.9(a)
Background References: ABA Model Rule 1.9(a), Other Jurisdictions
Commentary: ABA/BNA § 51:201, ALI-LGL § 213, Wolfram § 7.4
NJ Commentary:

There are three elements that must be present in order to create a conflict requiring the consent of a past client or, in the absence of consent, withdrawal from a representation: (1) a past client whom the lawyer “represented” in a matter; (2) a present client whose interests are materially adverse to those of the past client; and (3) a current matter that is the same as or substantially related to the matter in which the lawyer represented the past client.

In addition, RPC 1.9(b) states that “[t]he provisions of RPC 1.7(c) are applicable as well to situations covered by this rule.” Because RPC 1.9(b) incorporates RPC 1.7(c), both the principle that consent is immaterial in some circumstances and the “appearance of impropriety” doctrine are a part of the analysis of conflicts involving past clients.

In other words, under RPC 1.9, a lawyer may undertake a representation adverse to a former client if the matter is neither the same as nor substantially related to any matter handled by the lawyer for the former client. Note, however, that even if a matter is found not to be substantially related to the attorney’s prior work on behalf of a presently adverse party, the current representation may still be precluded by the “appearance of impropriety” doctrine. See N.J. Advisory Comm. on Professional Ethics Op. 654 (Oct. 17, 1991). See Sections 21:1-1 and 21:5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.9:210      "Substantial Relationship" Test

Whether a current matter is substantially related to a prior representation depends largely on the facts and circumstances of the particular case. For example, in G.F. Industries v. American Brands, 245 N.J. Super. 8 (App. Div. 1990) the court found that a breach of warranty claim arising out of a corporate acquisition was substantially related to a firm’s long-term service as the acquired company’s general counsel. See Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 214 (1988) and N.J. Advisory Comm. on Professional Ethics Op. 525 (Apr. 5, 1984). See Section 21:4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.9:220      Material Adversity of Interest

[The discussion of this topic has not yet been written.]

1.9:230      Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]

Even if a lawyer’s present representation adverse to a former client is neither the same as nor substantially related to any of the lawyer’s prior work for that former client, the lawyer may still be disqualified by the “appearance of impropriety” doctrine. See N.J. Advisory Comm. on Professional Ethics Op. 654 (Oct. 17, 1991), recognizing that an “appearance of impropriety” analysis is a necessary final step after a determination that a present representation is not substantially related to a prior matter handled on behalf of a currently adverse party. Under RPC 1.9(b) and RPC 1.7(c)(2), disqualification will be warranted if an ordinary, knowledgeable citizen acquainted with the facts would conclude that the current representation of a party adverse to a former client poses a substantial risk of disservice to either the public interest or the interest of one of the clients. See Section 21:6, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.9:300   Client of Lawyer's Former Firm

Primary New Jersey References: NJ Rule 1.9(b)
Background References: ABA Model Rule 1.9(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 203, 204, 214, Wolfram § 7.6
NJ Commentary:

[The discussion of this topic has not yet been written.]

1.9:310      Removing Imputed Conflict of Migratory Lawyer

[The discussion of this topic has not yet been written.]

1.9:320      Former Government Lawyer or Officer [see 1.11:200]

[The discussion of this topic has not yet been written.]

1.9:400   Use or Disclosure of Former Client's Confidences

Primary New Jersey References: NJ Rule 1.9(c)
Background References: ABA Model Rule 1.9(c), Other Jurisdictions
Commentary: ABA/BNA § 55:501-55:2001, ALI-LGL § 213, Wolfram §§ 6.7 and 7.4
NJ Commentary:

[The discussion of this topic has not yet been written.]